The Shari'a Appeals Court Rulings on Child Custody

63 Pages·2013·3.37 MB·English

by  Moussa Abou Ramadan

Fordham International Law Journal
Volume26,Issue3 2002 Article5
The Transition from Tradition to Reform: The
Shari’a Appeals Court Rulings on Child
Custody (1992-2001)
Moussa Abou Ramadan∗
∗
Copyright(cid:13)c2002bytheauthors. FordhamInternationalLawJournal isproducedbyTheBerke-
leyElectronicPress(bepress). http://ir.lawnet.fordham.edu/ilj
The Transition from Tradition to Reform: The
Shari’a Appeals Court Rulings on Child
Custody (1992-2001)
MoussaAbouRamadan
Abstract
TheprincipalobjectofthisArticleistodemonstratethatIslamiclaw,likeanysystemoflaw,
isdynamicratherthanstatic. Islamiclawcannotbethoughtofaslawdisconnectedfromhistory
andsociety. Likeanyotherlegalsystem,itisinfluencedbypolitical,economicandsocialfactors.
Inordertoillustratethisidea,thisArticletakesasacasestudytherulingsconcerningcustodyof
theShari’aAppealsCourtinIsrael. ThisArticlesurveystherulingsoftheShari’aAppealsCourt
addressingchildcustodyfrom1992through2001. ThisArticle’scentralclaimisthattheAppeals
Court’s approach to child custody underwent a metamorphosis during that period. In Part I, I
willanalyzetheessentialfeaturesofthistransition. Thiswillrequireanexaminationofclassical
Islamiclaw’streatmentofcustody,specificallytheHanafischool’streatmentofit. Iwillfocuson
the new interpretation that the Shari’a Appeals Court gave to custody. In Part II, I will offer an
explanationforthistransition.
THE TRANSITION FROM TRADITION TO
REFORM: THE SHAR'A APPEALS COURT
RULINGS ON CHILD CUSTODY (1992-2001)
Dr. Moussa Abou Ramadan*
INTRODUCTION
Many writers look at Islamic law as immutable, law without
any change or evolution. They perceive Islamic societies as re-
producing themselves without changing. In order to understand
the behavior of Muslims, we should look to the Qu'ran for an
explanation.' This monolithic perspective is not limited to sec-
ondary literature. As stated in a decision of the European Court
of Human Rights: "the Court considers that Shari'a, which faith-
fully reflects the dogmas and divine rules laid down by religion,
is stable and invariable."2 The principal object of this Article is
to demonstrate that Islamic law, like any system of law, is dy-
namic rather than static. Islamic law cannot be thought of as law
disconnected from history and society. Like any other legal sys-
tem, it is influenced by political, economic and social factors. In
order to illustrate this idea, this Article takes as a case study the
rulings concerning custody of the Shari'a Appeals Court in
* Haifa University, Law Faculty. Dr. Abou Ramadan is currently Emile Noel Fellow
at theJean Monnet Center for International and Regional Economic Law andJustice at
the NYU Law School, New York City. He would like to thank Omar Abou Ramadan,
Khaled Ganaem, Yehiel S. Kaplan, Shifra Kisch, Aharon Layish, Daniel Monterescu,
Tzvika Nissel, Amnon Reichman, Ido Shahar, Abdel Rahman Tayyara for reading previ-
ous drafts of this Article and for making comments. Additionally, Dr. Abou Ramadan
would like to thank the editors and staff of FORDHAM INTERNATIONAL LAWJOURNAL, and
especiallyJulie Turner and her staffJulie Wald, and Inna Nazarova for their efforts and
time in editing this Article. Dr. Abou Ramadan would also like to thank his research
assistants, who worked on different stages of this Article: Zeev Magen, Amin Rabah, and
Muhammad SailAlden Wattad. In addition, he would like to thank Michael Prawer for
his editing. Dr. Abou Ramadan followed a modified version of the transliteration sys-
tem, as established by the INTERNATIONALJOURNAL OF MIDDLE EAST STUDIES. The Arti-
cle does not contain any diacritical marks except for ayn and hamza. All translations
from foreign languages are done by Dr. Abou Ramadan, unless otherwise mentioned.
All foreign sources, including laws, court rulings, and dissertations, are on file with Dr.
Abou Ramadan, unless otherwise noted. All responsibilities fall on Dr. Abou Ramadan.
1. See Bernard Botiveau, A propos de... gardiensd e lIslam: les oulrnas d'al-Azhar dans
l'Eogypte contemporaine, available at http://www.irmcmaghreb.org (briefly addressing this
trend).
2. Refah Partisi, Erbakan, Kazan and Tekdal v. Turkey, 35 Eur. Ct. H.R. at 3
(2001).
596 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 26:595
Israel. In Israel, for certain matters, the law recognizes the juris-
diction of different religious courts. Before the adoption of
Amendment No. 5 to the Family Court Law on November 14,
2001,' the Shari'a Appeals Court had exclusive jurisdiction over
matters of alimony, custody, divorce, maintenance, and mar-
riage. After this Amendment, disputes concerning custody
could be adjudicated in either civil or Islamic courts. In Israel,
there are seven Shari'a courts from which there is a right of ap-
peal. These courts serve the Muslim minority in Israel, constitut-
ing around twenty percent of the entire population.4
This Article surveys the rulings of the Shari'a Appeals Court
addressing child custody from 1992 through 2001.' This Arti-
cle's central claim is that the Appeals Court's approach to child
custody underwent a metamorphosis during that period. What
began as a traditional approach, based upon a literal reading of
the Kadri Pasha Code, developed into a reformist approach.
Prior to 1994, the Shari'a courts considered the child's best inter-
ests exclusively because of Israeli law. Subsequently, the courts
Islamized the principle and applied it as a matter of Shari'a law
itself. The Shari'a Appeals Court, however, did not limit the
scope of the reform to the subject of child custody; it was applied
to other subjects as well, including child support, dissolution of
marriage, maintenance for wives, and wills.6
In Part I, I will analyze the essential features of this transi-
tion. This will require an examination of classical Islamic law's
treatment of custody, specifically the Hanafi school's treatment
of it. I will focus on the new interpretation that the Shari'a Ap-
peals Court gave to custody. In Part II, I will offer an explana-
tion for this transition.
I. FROM TRADITION TO REFORM
The rulings of the Shari'a Appeals Court evolved between
3. Family Court Law, 1995, S.H. 1537, as amended by Amendment No. 5 of Nov. 14,
2001, S.H. 1810.
4. See Laurence Louer, Les citoyens arabes d'Israel: Analyse d'une communautarisation
(2001) (unpublished Ph.D. dissertation, Institut d'Etudes Politiques de Paris) (present-
ing a recent study on the Muslim minority in Israel).
5. See AHARON LAYISH, WOMEN AND ISLAMIC LAW IN A NON-MUSLIM STATE: A STUDY
BASED ON DECISIONS OF THE SHAI'A COURTS IN ISRAEL (1975) (providing a systematic
examination of the rulings of the different Shari'ac ourts, from the reconstitution of the
courts after the establishment of the State of Israel, to the beginning of the 1970s).
6. The author of this Article intends to cover all of these issues in future research.
2003] THE TRANSITION FROM TRADITION TO REFORM 597
1994 and 2001, in a manner indicating a basic and complete re-
vamping of its fundamental conceptions. On a substantive level,
there was a transition from the traditional model to the re-
formed model. The rulings of the Shari'a Appeals Court from
1994 through 2001 are the concrete expression of this transition.
Prior to outlining the cases, and in order to fully appreciate the
nature of the transition and its power, however, I must first deal
briefly with the Hanafi school.
A. Classic Islamic Law Regarding Child Custody with an Emphasis
on the Hanafi School'
In matters of personal status, Israeli religious courts adjudi-
cate in accordance with the personal law of the specific "commu-
nity" to which the litigants belong. For Muslims, Islamic law is
applicable. The primary normative source of Islamic law is the
Qu'ran, which, according to Muslims, is the embodiment of the
Divine word that was revealed in stages to Muhammad by the
Angel Gabriel. The second source is the Sunna of the Prophet
- a record of all of Muhammad's acts and sayings, as well as acts
performed by others that were not opposed by him. The third
source is the Ijma'. This term can be translated as "consensus."
There is no consensus in Sunni legal methodology about whose
consensus is requested. The fourth legal source is Qiyas -
"analogy." In Islamic law, these primary sources are comple-
mented by secondary sources, such as "custom," "general inter-
est," and the istihsan. This is a theoretical description, as it ap-
pears in the book of the methodology of law.8 It is stressed, how-
ever, that these are the formal normative sources of Islamic law,
7. See Y. LINANT DE BELLEFONDS, TRAIT9 DE DROIT MUSULMAN COMPAR9 152-76
(1965) [hereinafter DE BELLEFONDS, TRAITt]; Mahdi Zahraa and Normi A. Malek, The
Concept of Custody in Islamic Law, 155 ARAB LAW QUARTERLY 177 (1998). For Arabic
literature of 20th century scholars, see generally MUHAMMAD ABU ZAHRA, AL-AHWAL AL-
SHAKHSIYYA 413-40 (3d ed. 1957); BADRAN ABU AL-'ININ BADRAN, AL-FIQH AL-MUQARIN LL-
AHWAL AL-SHAKHSIYVA BAYNA AL-MADHAHIB AL-ARBA'A AL-SUNNIYYA WAL-MADHAB AL-
J'AFARI WAL-QANUN 543-74 (1967); 10 Abd al-Karim Zidan, AI-Mufassal Fi Ahkam al-
Mara' wal-Bait al-Muslim Fi al-Shari'a al-Islamiyya 5-83 (1st ed. 1993) [hereinafter AL-
KARIM ZIDAN]; WAHBIH AL-ZUHAYLI, AL-FIQH AL-ISLAMI WA'DILATIH 732-29 (4th ed.,
1997); MAHMUD ALl AL-SARTAWI, SHARH QANUN AL-AHWAL AL-SHAKHSIYYA 559-91 (1997);
AHMAD AL-HAJI AL-KURDI, BUHUTH WAFATAWA FIQHIYYA MUA'ASIRA 104-53 (1999); 2
MUHAMMAD ZID AL-IBIANI, SHARH AL-AHKAM AL-SHARA'vA Fi AL-AHWAL AL-SHAKSYVYA 65-
80 (1911).
8. See MUHAMMAD HASHIM KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE (revised
ed. 1991); WAHBI AL-ZUHAYLI, USUL AL-FIOH AL-ISLAMI (1986).
598 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 26:595
whereas the materially substantive sources of the law are found
primarily in the works of the Islamic jurists, to whom I shall refer
in this Article as "scholars.""
Islam is divided into different streams, the principal division
being between Sunni Islam and Shi'i Islam. Sunni Islam com-
prises four schools, each named after its founder. The Hanafi
school was established by Abu Hanifa; the Maliki school by Malik
b. Anas; the Shafi'i school by Al Shafi'i; and the Hanbali school
by Ahmad b. Hanbal. The schools are divided with respect to
the specific sources of Islamic law, as well as numerous other
subjects.
As stated, the founder of Hanafi was Abu Hanifa, who had
two students: Abu Yusuf and Muhammad. A long line of schol-
ars subsequently interpreted the works of the scholars of the dif-
ferent schools. In order to understand the Classical Law, I will
refer principally to the writings of these scholars, focusing prima-
rily on the Hanafi. Where necessary, I will also refer to scholars
of the other schools. Incidentally, in the Hanafi school there was
additional development, as evidenced in the works of Chafik
Chehata"' and Ya'akov Meron.1' The development extended be-
yond the well-known disputes between the founders of the
school. In this Article, however, I shall focus upon the dominant
views.
Under the Ottoman Empire, the Hanafi school was ascen-
dant over the other schools.'2 Slowly and cautiously, the Otto-
man Sultan initiated a legislative process that climaxed in the
nineteenth century. The legislative process was expressed in the
codification of various fields, although occasionally it meant no
more than the importing of translations of foreign legislation.
9. See DE BELIEFONDS, TRArrf., supra n.7 (discussing the distinction between formal
sources and materially substantive sources).
10. See CHAFIQ CHEHATA, ETuDES DE DROIr MUSULMAN (1971).
I1. See YA'AKOV MERON, L'OBLIGATION ALIMENTAIRE ENTRE EPOUX EN DROIT
MUSULMAN IANtFITE (1971) [hereinafter MERON].
12. SeeJuDr-i E. TUCKER, IN THE HOUSE OF LAw: GENDER AND ISLAMIC LAw IN
OFIT'OMAN SYRIA AND PALESTINE (1998); HENRI LAOUST, LES SCHISMS DANS L'ISLAM: INTRO-
DUCIrION A UNE ITUDE DE LA RELIGION MUSULMANE 311 (1965); MUHAMMAD AL-ZUHAYLI,
TARIKH AL-QADA', FI AL-ISLAM 448 (1st ed. 1995). While the Hanafi school had an offi-
cial status, in the large towns the Ottomans customarily appointed Qadis belonging to
the other three traditions. This custom was initiated by the Mamluk Sultan Bifris in
1265. SeeJoseph H. Escovitz, Patterns of Appointment to the ChiefJudgeships of Cairo Duing
the Bahri Mamluk Period, XXX ARABIC, TOME 147-68 (1983).
20031 THE TRANSITION FROM TRADITION TO REFORM 599
Thus, the Swiss Code was translated, and it influenced the civil
procedure. Another aspect of the codification was the codifica-
tion of Islamic law, as interpreted by the Hanafi, the Mejelle being
the most prominent example. It was only in 1917 that matters of
personal status were partially codified.1 3 While this legislation
relied primarily upon the Hanafi tradition, it also absorbed ele-
ments from other traditions, using the legal tool of talfik.4
The process of codification, however, was partial; many ar-
eas were ignored, among them child custody, child support, in-
heritance, and lineage. Theoretically speaking, in these areas
the Shari'a courts were supposed to continue relying upon the
classical books of Hanafi fiqh. Nonetheless, quite rapidly, a new
custom of using the Kadri Pasha Code emerged. 5 This Code
regulates personal status in Islamic law according to the Hanafi
school. The codification committee relied principally upon Ibn
'Abdin, the Mufti" in Damascus, who was regarded as one of the
last great Hanafi scholars. Use of the Code increased, despite its
lack of official legislative force. The Egyptian government
avoided giving the Code legislative status for fear of creating a
perception of infringing on Shari'aj urisdiction."7 Aharon Layish
attributes the use of the Code in Israel to the fact that some of
the Qadis'8 in Israel, prior to the establishment of the State of
Israel, studied in al-Azhar in Egypt, from where they brought the
Code.1"
13. See S. GUrvrEIN & A. BEN SHUSHAN, ISLAMIC LAW IN THE STATE OF ISRAEL (1957)
(discussing the translation of the law and the explanatory notes). See also Judith E.
Tucker, Revisiting Reform: Women and the Ottoman Law of Family Rights, 1917, 4(2) ARAB
STUDIESJ. 4, 4-17 (1996).
14. Talfik is a technique used by the Islamic legislature in order to institute reform
in Islamic law by way of reliance on more than one tradition. See NORMAN ANDERSON,
LAW REFORM IN THE MUSLIM WORLD 47-58 (1976) (providing examples of this tech-
nique in practice).
15. See MUI-AMMAD ZID AL-IBIANI, supra n.2.
16. A "Mufti" is a Muslim scholar who gives legal opinion.
17. Y. Linant de Bellefonds, Immutabiliti de Droit musulman et reformes ligislatives en
Egypte, in REVUE INTENATIONALE DE DROIT COMPAR" 5-34 (esp. 12-13) (1953) [hereinaf-
ter de Bellefonds, Immutabilitg].
18. In the context of this Article, the term "Qadi" is used to mean a judge in an
Islamic court.
19. Aharon Layish, The Qadis and the Shari'a in Israel, in THE ULEMA AND RELIGIOUS
PROBLEMS IN THE ISLAMIC WORLD 294-315 (G. Bach ed., 1971).
600 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 26:595
1. Definition of the Hadana
"Hadana"i s defined by the Hanafi as "caring for the child,
ensuring the fulfillment of his needs in all areas at a certain age,
by a person who has the right of hadana.''20 Hadana purported
to moderate paternal power in a system that was essentially pa-
ternalistic.2' Some scholars view hadana as being a component
of wilaya, or guardianship.22
The uniqueness of hadana lies in its attitude towards wo-
men.23 The question of hadana only arises after divorce, at least
in the opinion of al-Sarakhsi.24 Accordingly, the chapter ad-
dressing hadana is part of the law that applies to the child upon
dissolution of the marriage. Al-Kasani, on the other hand, did
not view hadana as beginning with the dissolution of the mar-
riage.25 The two views, however, can be reconciled. On a practi-
cal level, hadana becomes relevant only after the dissolution of
the marriage.
2. Conditions for Custodianship Legal Capacity:
Majority and Sanity
In order to qualify for hadana, a person must have reached
the age of majority. A minor lacks the legal capacity to receive
hadana, for he is unable to guard and take care of himself. Eligi-
bility for hadana is further contingent upon sanity. Conse-
quently, an insane person cannot become a custodian of chil-
dren. The two reasons have a shared rationale: in order to take
care of another, the entitled person must first prove his ability to
take care of himself.26
a. Freedom
Entitlement to hadana is dependent upon the person being
20. 14 IRN NUJAYM, AL-BAHR AL-RA'IQ 179 (1997) [hereinafter IBN NUJAYM]. See gen-
erally 3 IBN 'ABDIN, HASHAT RADD AL-MUHTAR (1960) [hereinafter IBN 'ABDIN].
21. DE BELLFONDS, TRAITt, supra n.7.
22. IBN NUJAYM, supra n.20, at 182; 5 AL-SARAKHSI, AL-MABSUT, 207 (4th ed. 1976-
1980) [hereinafter AL-SARAKHSI].
23. 4 AL-KASANI, BADAT' AL-SANA'I' 41 (1974).
24. AL-SARAKHSI, supra n.22, at 207.
25. AL-KASANI, supra n.23, at 4045.
26. 2 IBN 'ABDIN, HASHIYAT RADD AL-MUHTAR 871-72 (1960) [hereinafter IBN
'ABDIN].
2003] THE TRANSITION FROM TRADITION TO REFORM 601
free. Classical Islamic law recognizes slavery.27 According to
some scholars, hadana is an integral part of wilayah, and a slave
cannot be a guardian. Furthermore, a maidservant is inevitably
occupied with service of her master and lacks the requisite time
to care for a child. This is the opinion of the Hanafi, Hanbali,
and Shafi'i schools. According to the Maliki school, the right of
hadana is given to the mother and to the maidservant whose
child is free.21
b. Physical Capacity
The child's custodian must have physical strength. In the
event of physical incapacitation, he is not entitled to hadana2.9
c. Religion
Receiving hadana is not contingent upon being a Muslim.
Conceptually, hadana is rooted in compassion. Thus, even if the
mother belongs to the Dhimmi,3° she is entitled to keep the
child.3" This, however, is not the case regarding a person who
was a Muslim and left the religion, for a woman apostate would
be imprisoned until her return to Islam. No school other than
the Shafi'i requires that the mother pray as a condition to her
32
entitlement to hadana.
d. Special Conditions for Women
In addition to the conditions stipulated above, the blood
27. Books on Islamic law deal extensively with the status of the slave. Today, how-
ever, most of the Islamic States have abolished the institution of slavery. See Sami A.
Aldeeb Abu-Sahlieh, La definition internationaled es Droits de l'homme et l'Islam, R.G.DI.P.
625, 625-706 (1985). An attempt was also made to abolish the institution of slavery by
having resort to one of the Islamic sources of law, ijma'"
28. 4 AL-HAl lAB, MAWAHIB, AL-JALIL LI-SHARH MUKHTASAR KHALIL 214-15 (1969); DE
BELLEFONDS, TRAITE, supra n.7, at 163. Section 98 of the Moroccan law is derived prima-
rily on the Malikis, and it enumerates the conditions that a custodian must satisfy. Be-
ing a free man is not one of the conditions.
29. HAZIM AHMAD MUHAMMAD, DHIYAB, AHKAM AL-HADANA FI AL-SHARI'A AL-IS-
LAMIYYA 73 (unpublished Masters Graduate Thesis in Islamic Law and Constitution,
University of al-Najah) (1995).
30. In order to receive the status of Dhimmi, it is necessary to pay a tax, known as
"jizya." This tax, however, is not accepted from every group. See WAHBIH AL-ZUHAYLI,
ATHAR AL-HARB F1 AL-FIQH AL-ISLAMI: DIRAsA MUQARINA 712-27 (4th ed. 1992) (defining
Dhimi).
31. AL-KASANI, supra n.23, at 42; IBN NUjAyM, supra n.22, at 185.
32. IBN NUIAYM, supra n.22, at 181.
602 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 26:595
connection of the woman must preclude her marriage to an-
other man. Most scholars find that if a woman marries another
man, she is unable to continue her custodianship of the child
and forfeits her entitlement to hadana. This view is disputed by
Ibn Hazm of the Zahiri school, which finds that a woman's mar-
riage to another man does not remove her claim to hadana3.3
This rule is based upon the hadith of the Prophet, according
to which a woman complained to the Prophet that her husband
wanted to take her child away from her. The Prophet responded
to her: "You have more right to him so long as you do not
marry." Scholars understood this prohibition to apply only to
marriage to an "alien" man, i.e., a stranger. The prohibition de-
rives from the fear that the stranger will not take care of the
child. The man is "alien" in the sense that there is no rule for-
bidding him to marry the child. On the other hand, if the wo-
man were to marry the child's uncle, she would not forfeit her
entitlement to custody of the child. 4
This law is given the following expression by al-Sarkhasi,
who states that:
[i]f the mother marries another man, the father can take the
child away from her, for the Prophet of blessed memory said
'for as long as you do not marry' - hence the right of cus-
tody is until she marries . . . for if she marries she will be
occupied in taking care of her husband and will have no time
to educate the child, and the child will generally live in diffi-
cult and humiliating conditions due to the woman's husband;
the father can therefore withhold agreement and remove the
child from her.3 5
3. Duration of Hadana
Hadana is only granted for a limited period. Upon its expi-
ration, the son or daughter is transferred to paternal custody.
Different ages for the custody transfer were established for sons
and daughters.
The son goes to his father when he no longer depends on
female help, which is when he both eats and purifies himself
33. Ibn Hazm, 11 AL-MUHALLA 742, 745 (1970).
34. AL-KARIM ZIDAN, supra n.7, at 44; AL-KASANI, sufa n.23, at 42.
35. See AL-SARAKHSI, supra n.22, at 210; IBN NUJAYM, supra n.22, at 183-85; IBN AL-
HUMAM, FATH AL-QADIR 317 (1987) [hereinafter IBN AL-HUMAM].